Greg Herden v. United States

Aug 9: In the U.S. Court of Appeals, Eighth Circuit, Case No. 11-3530. Appealed from United States District Court for the District of Minnesota in Minneapolis. In an split, en banc decision, the Appeals Court explains that Greg Herden, Roger Herden, and Garrett Herden (the Herdens) sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80. They alleged their cattle operation suffered damage because of a seed mixture an employee of the United States Department of Agriculture (USDA) directed them to plant on their land. The district court dismissed the Herdens' claims, concluding the Federal employee's conduct fell within the FTCA's discretionary-function exception. The Appeals Court indicates that, "After a divided panel of this court reversed the district court, the en banc court granted the government's petition for rehearing. We now affirm the district court."

 

    The case involves the Herdens who operate a three-generation cattle farm in northern Minnesota. In May 2004, the Herdens chose to participate in the Environmental Quality Incentives Program (EQIP). EQIP is a program run by the USDA through the Natural Resource Conservation Service (NRCS). In this case, the Herdens agreed to plant a mix of grasses and legumes on some of their pasture lands, and the government agreed to reimburse the Herdens 90% of the costs associated with planting the seed mixture chosen by the NRCS. In Minnesota, William Hunt served as the NRCS's State Conservationist. Hunt delegated seed mixture planting decisions to his staff, including State Grazing Specialist Howard Moechnig. Moechnig was the particular staff member who visited the Herdens' ranch to select a seed mixture.

    After Moechnig chose the seed mixture for the pasture in Section 11, Greg Herden said he complained to Moechnig about the high amount of Alsike Clover in the mixture because the clover can create toxic hay for cattle. Moechnig does not recall Herden complaining about Alsike Clover toxicity, but does remember Herden asking for permission to plant a mix containing alfalfa. Moechnig denied permission to plant an alfalfa mix, explaining that alfalfa is hard to establish on wet soils and therefore would neither meet NRCS's environmental goals nor be a good investment for the government. The Herdens chose to comply with Moechnig's seed mixture decision because failure to do so would have resulted in losing the federal funding under EQIP.

 

    The Herdens claim toxic hay began to injure their cattle in the spring of 2007. Several calves were stillborn, and others died shortly after birth. Adult cattle also died. The Herdens attribute the illnesses and deaths of their cattle to the Alsike Clover in the hay harvested from the Section 11 pasture. They claim the losses to their cattle herd have virtually destroyed their multi-generational farming operation. The NRCS contests the Herdens' claims and instead believes mold in improperly stored hay caused the problems with the cattle herd.

    The Majority reasoned that, "On one hand, the Herdens believed a seed mixture containing alfalfa would have better advanced the statutory goal of agricultural production, as well as one of Code 512's stated purposes of improving or maintaining livestock nutrition and/or health. On the other hand, Moechnig believed a seed mixture containing Alsike Clover would better advance the statutory goal of environmental quality, and at least one of Code 512's stated purposes of reducing soil erosion by wind and/or water. The fact that Moechnig was required to balance those competing interests in order 'to optimize environmental benefits,' 16 U.S.C. § 3839aa, clearly demonstrates the decision he ultimately made was susceptible to policy analysis and thus the type of decision Congress meant to shield from judicial second-guessing. A federal employee implementing EQIP at the local, operational level must have the discretion to balance environmental protection and cattle production in order for the program to be worth the government's significant investment. . . Moechnig's job required him to balance protecting the environment with providing nutritious cattle forage, while at the same time being cognizant of the cost to the Herdens and the federal government. We therefore conclude this case involves the type of discretionary decision Congress meant to shield from judicial second-guessing."

 

    Three Justices dissented saying, ". . .Moechnig's decision in this case is not the type of decision Congress intended to shield from suit. Decisions are not shielded from suit merely because it is possible to identify policy issues behind the government program at issue. Rather, there must be 'real and competing policy considerations implicated,' C.R.S. ex rel. D.B.S. v. United States, 11 F.3d 791, 802 (8th Cir. 1993), at the general level of decision-making challenged in the lawsuit. This 'is what separates' protected from unprotected conduct. Id. It is our task to carefully distinguish those cases involving meaningful policy considerations from cases like this, that bear only the superficial trappings of such considerations. . . Moechnig's limited authority did not extend to the type of discretion Congress intended to shield from suit."

 

    Access the complete opinion and dissent (click here). [#Agriculture, #Land, #CA8]

NRDC v. County Of Los Angeles

Aug 8: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-56017. On Remand From The United States Supreme Court [In Los Angeles Cnty. Flood Control Dist. v. Natural Res. Def. Council, Inc., 133 S. Ct. 710 (2013), See WIMS 1/8/13].

 

The Appeals Court explains, Plaintiffs-Appellants Natural Resources Defense Council and Santa Monica Baykeeper (collectively, the Plaintiffs) filed suit against the County of Los Angeles and the Los Angeles County Flood Control District (collectively, the County Defendants) alleging that the County Defendants are discharging polluted stormwater in violation of the terms of their National Pollutant Discharge Elimination System (NPDES) permit, issued pursuant to the Federal Water Pollution Control Act (the Clean Water Act, Act, or CWA), 86 Stat. 816, codified as amended at 33 U.S.C. §§ 1251, et

seq.

 

    The district court granted the County Defendants' motion for summary judgment, reasoning that Plaintiffs failed to prove that any individual defendant had discharged pollutants in violation of the Clean Water Act, where Plaintiffs' only evidence of violations was monitoring data taken downstream of the County Defendants' (and others') discharge points, as opposed to data sampled at the relevant discharge points themselves.

 

    On appeal, the Ninth Circuit affirmed the district court's judgment in part and reversed in part. Natural Res. Def. Council, Inc. v. Cnty. of L.A., 673 F.3d 880 (9th Cir. 2011) [See WIMS 3/11/11]. On January 8, 2013, the Supreme Court reversed our judgment and remanded this case to us for further proceedings. L.A. Cnty. Flood Control Dist. v. Natural Res. Def. Council, Inc., 133 S. Ct. 710 (2013). On February 19,

2013, the Ninth Circuit ordered the parties to file supplemental briefs addressing the implications of the Supreme Court's ruling.

 

    The Appeals Court rules, "Having considered the Supreme Court's ruling, the responses of the parties in their supplemental briefs, and other matters noted herein, we now conclude that the pollution exceedances detected at the County Defendants' monitoring stations are sufficient to establish the County Defendants' liability for NPDES permit violations as a matter of law. Accordingly, we once again reverse the district court's grant of summary judgment in favor of the County Defendants, and remand to the district court for a determination of the appropriate remedy for the County Defendants' violations."

 

    In conclusion of its reverse and remand the Ninth Circuit says, "Because the results of County Defendants' pollution monitoring conclusively demonstrate that pollution levels in the Los Angeles and San Gabriel Rivers are in excess of those allowed under the Permit, the County Defendants are liable for Permit violations as a matter of law. This case is remanded to the district court for further proceedings consistent with this opinion, including a determination of the appropriate remedy for the County Defendants' violations."

 

    Steve Fleischli, senior attorney and director of NRDC's national water program commented on the decision saying, "Today's influential victory once again confirms Los Angeles County's legacy of Clean Water Act violations. No longer can the County sit idle and let persistent pollution problems sicken swimmers in Southern California. Today, Los Angeles residents and visitors alike can celebrate a future with cleaner water, knowing that the County is legally obligated to get to work to address its pollution problem, and protect people and water quality. Luckily, we know there are a range of green infrastructure solutions available to ensure this pollution is addressed."

    Liz Crosson, executive director of Los Angeles Waterkeeper said, "This opinion is a turning point for all of Los Angeles. Stormwater runoff is the number one source of pollution in Los Angeles' rivers and beaches and LA County is the largest discharger of stormwater. Holding LA County responsible for its pollution and working with them to find region-wide solutions is the biggest victory we could imagine."

    Access the complete opinion of the Ninth Circuit (click here). Access the release with background information from NRDC (click here).  [#Water, #SupCt, #CA9]

Ackerman v. ExxonMobil Corporation

Aug 7: In the U.S. Court of Appeals, Fourth Circuit, Case No. 12-1103. Appealed from the United States District Court for the District of Maryland, at Baltimore. ExxonMobil Corporation (Exxon) and John R. Hicks (together, Defendants) appeal a district court order abstaining from exercising jurisdiction under the Colorado River doctrine in a case brought against Defendants. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). The Appeals Court said it could find no reversible error and affirmed the decision of the district court.

 

    In June 2004, hundreds of residents of Fallston, Maryland, filed a putative class action (the Koch action) against Defendants in Maryland state court. The complaint alleged several state law causes of action for the contamination of their properties by gasoline and the gasoline additive methyl tertiary-butyl (MTBE) from an Exxon station that Hicks operated.

 

     The Ackerman Plaintiffs filed a motion in federal court seeking to remand the case to state court, arguing that removal was time-barred and that the Defendants waived their right to remove by litigating for several years in state court. Alternatively, the Ackerman Plaintiffs requested that the district court abstain under the Colorado River doctrine, which permits federal courts, under exceptional circumstances, to refrain from exercising jurisdiction in deference to pending, parallel state proceedings.

 

    When concluding that abstention was proper, the district court focused in large part on the length of time that the Koch action had been pending in state court and the progress that had been made on the case in the state system. The Koch case had proceeded in state court for years before the Ackerman claims were extracted and separately re-filed, and extensive discovery efforts had been conducted over the course of those years.

   

    The Appeals Court explained, "Balancing these facts and the other relevant factors against its own duty to exercise jurisdiction, the district court ultimately concluded that 'this litigation presents the rare, exceptional circumstances when wise judicial administration counsels abstention.'. . . The court therefore stayed Ackerman pending the resolution of the Koch proceedings in state court. The Defendants now appeal, arguing that the district court erred by granting the Plaintiffs' motion to abstain."

 

    In its conclusion the Appeals Court rules, "To summarize, we hold that 28 U.S.C. § 1446(d) affects only the jurisdiction of the state court only with regard to the case actually removed to federal court. Because Koch was not removed, the state court maintained jurisdiction over it, and the amendment to the complaint in that case was not void ab initio. That the district court might have had authority to issue an injunction striking the amendment does not make the amendment void when the district court never issued an injunction. The district court thus was correct to consider the amended Koch complaint in determining whether the Koch and Ackerman actions were parallel, and the court did not abuse its discretion when concluding that exceptional circumstances warranted abstention in favor of the pending Koch action. Accordingly, for the foregoing reasons, we hereby affirm the district court's order."

 

    In a strange separate, "concurrence" opinion, one Justice writes, "I write separately because the district court's errors were so many and of such significance that I cannot share the majority's confidence that they did not contribute to that result. More importantly, I believe that leaving those errors not only unaddressed but unacknowledged will allow, if not encourage, their repetition. My fundamental concern with the majority's opinion is that in its magnanimity to a profoundly flawed disposition below, it omits critical facts at the expense of our well-established obligation to exercise the jurisdiction that we have. . ."

 

    Access the complete opinion and concurrence (click here). [#Remed, #CA4]

Litgo New Jersey Inc v. Comm NJ Dept Env Protection

Aug 6: In the U.S. Court of Appeals, Third Circuit, Case No. 12-1288 & 12-1418 . Appealed from the U.S. District Court for the District of New Jersey. In a split opinion, the Majority Appeals Court summarizes saying the appeal follows a seventeen-day bench trial that involved several claims arising under Federal and State environmental laws. At issue is which parties bear the responsibility for the removal of hazardous substances present in the soil and groundwater at a parcel of land in Somerville, New Jersey (the Litgo Property or Property).  The Appeals Court says although the issue is "complicated by the fact that the Property has been the site of various private and public concerns since 1910, the District Court engaged in a careful examination of the evidence and the arguments of the parties, and we essentially agree with its adjudication of the case. We disagree with the District Court's determination, however, in two respects, and will reverse in part and remand."

 

    The Majority concludes, ". . .we agree with the great majority of the District Court's comprehensive and thoughtful consideration of this complex case, and will affirm its judgment in all respects save two: (1) the Litgo Appellants should have been awarded prejudgment interest; and (2) the District Court erred in dismissing the RCRA claim against the Sanzari Appellees. We will vacate the District Court's order in those respects and will remand for further proceedings consistent with this opinion."    

    In a lengthy dissenting opinion the Justice concluded, "The majority opinion reaches its conclusion notwithstanding the fact that there is nothing in the text, intent, history, or purpose of RCRA indicating that Congress affirmatively prohibited the states from hearing and deciding cases brought pursuant to RCRA. The majority in its opinion has accordingly defied enduring Supreme Court precedents that go as far back as 1876. . . federal authority cannot excessively intrude on local regulation of land and water, it is essential (absent an express Congressional declaration otherwise) that the states should, through their own courts, be able to enforce the laws governing pollution of their land, even when the source of the law is federal. I am compelled to part company with my colleagues in the majority because they have failed to adhere to Supreme Court precedent interpreting Congress' legislation. As I have pointed out, since at least 1867 the Supreme Court has required federal courts to recognize dual jurisdiction in matters such as RCRA. The majority here has not. "

 

    Access the complete opinion and dissent (click here). [#Haz, #Drink, #Remed, #CA3]

Carolyn Baker v. Chevron U.S.A. Inc.

Aug 2: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 11-4369; 12-3995. Appealed from the U.S. District Court for the Southern District of Ohio. In this unpublished opinion, the case arises from defendant Chevron's activities at its crude oil refinery near the Village of Hooven in Hamilton County, Ohio. Chevron acknowledges that from 1931 to 1986, the refinery was the source of considerable environmental contamination, including hazardous air emissions and a cumulative release of approximately eight million gallons of gasoline that gravitated through the soil and formed a plume atop the groundwater under the refinery. By 1996, the plume had migrated under a portion of the Village of Hooven.

 

    Plaintiffs are approximately 200 former and current neighbors of the refinery who allege claims for damages arising out of the refinery's air emissions, the groundwater plume, and the "soil vapors" arising from the plume that escape to the surface. Plaintiffs fall into three distinct categories: (1) individuals who claim personal injury because of the air emissions; (2) individuals who seek medical monitoring damages because their exposure to the plume and its soil vapors has given them an increased risk of contracting a serious disease; and (3) individuals who claim property damage because of the plume and its soil vapors.

 

    The district court bifurcated the personal injury plaintiffs from the property damage plaintiffs and selected bellwether plaintiffs from each group to determine the viability of each category of claims. After excluding two of plaintiffs' experts opinions as unreliable, the district court granted summary judgment to Chevron on all claims. The district court also granted Chevron's motion for Rule 11 sanctions, ordering plaintiffs' counsel to pay Chevron $250,000 in defense costs because their positions regarding the legal and evidentiary basis for medical monitoring damages were objectively unreasonable. Plaintiffs appealed the orders excluding their experts and granting summary judgment to Chevron; plaintiffs' counsel appealed the order granting Rule 11 sanctions to Chevron. The district court granted Chevron's motions, holding that "the record fails to show that the hydrocarbon plume caused any damage to Plaintiffs' property or interfered with their property rights or with the use and enjoyment of their properties." The Appeals Court affirmed the district court decision in favor of Chevron.

 

    In part of its conclusion, the Appeals Court said, "After counsel admitted they had no causation proofs, the court suggested a Raceway dismissal so that counsel could challenge the court's legal rulings on appeal; the parties agreed. Later, however, counsel reneged because they wanted to dismiss the claims for medical monitoring and the nonbellwether property damage claims, whereas Chevron wanted to adhere to the compromise struck on the record and dismiss only the medical monitoring claims. In light of counsels' admission regarding their lack of evidence, Chevron subsequently sent counsel a Rule 11 safe-harbor letter advising counsel to voluntarily dismiss or face the possibility of paying defense costs for the medical monitoring claims going forward. Counsel refused to dismiss, believing that they were ethically obligated to preserve the medical monitoring plaintiffs' appellate rights. Counsel was mistaken.

 

    Rule 11 sanctions are appropriate when an attorney refuses to dismiss a claim after becoming aware that it lacks merit. See Merritt, 613 F.3d at 627 ('Rule 11 imposes a continual obligation on attorneys to refrain from pursing meritless or frivolous claims at any stage of the proceedings . . . .') (citation and internal quotation marks omitted); Runfola, 88 F.3d at 373 (affirming Rule 11 sanctions against counsel who failed to dismiss the action after becoming aware of their inability to assert any evidence in support of their claims). Given the history of this case, the district court did not commit a clear error of judgment by sanctioning counsel for continuing to litigate meritless claims. Further, counsel's false dilemma argument -- either dismiss and lose appeal rights or litigate and pay costs -- is unpersuasive. The district court offered counsel a Raceway dismissal that would have allowed counsel to promptly challenge the district court's rulings in this court. Despite this offer, counsel refused to dismiss only the claims of the medical monitoring plaintiffs and continued litigating under the specter of Rule 11 at their own peril. . . we affirm the judgment of the district court.

 

    Access the complete opinion (click here). [#Remed, #CA6]

Montana Wilderness Association v. BLM

Jul 31: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35818 & 11-35821. Appealed from the United States District Court for the District of Montana. In this partially split decision, the Majority Appeals Court explains that plaintiff environmental groups challenge the Bureau of Land Management's (BLM) Resource Management Plan (RMP) for the Upper Missouri River Breaks National Monument (Monument). The district court granted summary judgment to the defendants on all claims.

 

    The Majority rules, "We affirm in part, reverse in part and remand. We hold that BLM complied with the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA) but violated the National Historic Preservation Act (NHPA)."

 

    By way of background, the Antiquities Act authorizes the President of the United States to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments. 16 U.S.C. § 431.

 

    On the NHPA claims, Montana Wilderness Association (MWA) argues that BLM was required to conduct a Class III inventory in the areas where historic sites are most likely to be found (the river corridor) and the areas in which historic sites are most likely to be damaged or destroyed (roads, airstrips and dispersed camping sites). The Wilderness Society (TWS) argues that BLM should be required to conduct a Class III inventory for the most affected areas, which TWS says are the open road corridors. The government argues that BLM's reliance on a Class I survey was reasonable and in good faith, citing several considerations.

 

    The Majority indicates, ". . .we hold that BLM failed to make a reasonable effort to identify historical and cultural resources. Consistent with BLM's own policy documents, BLM is required to conduct Class III inventories for roads, ways and airstrips that have not been surveyed previously or were surveyed decades ago."

 

    The Majority concludes, "We conclude that the district court properly granted summary judgment in favor of the defendants on the plaintiffs' FLPMA and NEPA claims. We hold that the court erred by granting summary judgment in favor of the defendants on the plaintiffs' NHPA claim. We vacate that portion of the judgment and remand with instructions to enter judgment in favor of the plaintiffs on the NHPA claim and to enter an appropriate order requiring BLM to conduct Class III surveys with respect to roads, ways and airstrips that have not been subject to recent Class III surveys. Each party shall bear its own costs of appeal."

 

    The partially dissent Justice indicated that he disagreed with "the majority's conclusion that the RMP's definition of 'road' for purposes of the off-road travel ban is reasonable." He said, "I conclude that BLM's

adoption of this definition of 'road' violates the Proclamation, FLPMA, and the Administrative Procedure Act (APA) because BLM did not explain how its expansive definition of 'road' serves the Proclamation's essential purpose of protecting Monument objects. . . I disagree that BLM's definition of 'road' can survive APA review. . ."

 

    Access the complete opinion (click here). [#Land, #Transport, #CA9]

Pyramid Lake Paiute Tribe of Indians v. Nevada

Jul 30: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-16470, 11-16475 & 11-16482. Appealed from the United States District Court for the District of Nevada. The Appeals Court explains and summarizes that, "Almost from the time that explorers John C. Frémont and Kit Carson first came upon the Truckee River and Pyramid Lake, disputes have arisen about water rights. In this latest chapter in a hundred-year litigation history, see Nevada v. United States, 463 U.S. 110, 113 (1983) (summarizing history), we consider whether diverting water to wetlands in order to sustain wildlife habitat constitutes 'irrigation.' We conclude that, within the meaning of the federal court decree governing water rights in the Newlands Reclamation Project, it does not, and we affirm the judgment of the district court."

 

    In this localized dispute over water rights controlled by the so-called "Alpine Decree", the Appeals Court concludes, ". . .we agree with the district court that the State Engineer's approval of the applications to transfer the non-consumptive use portion of the Applicants' water rights violated Administrative Provision VII of the Alpine Decree because the applications seek a change in the manner of use to a non-irrigation purpose. While we recognize the salutary purpose to which the Applicants wish to apply water at Carson Lake and Pasture, they may not do so in contravention of the express limitation on transfers of water rights articulated in the Alpine Decree. In sum, the district court correctly concluded that diversion of water for waterfowl habitat is not 'irrigation' within the meaning of the Alpine decree. We affirm the judgment of the district court."

 

    Access the complete opinion (click here). [#Water, #CA9]